Preview
FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt #
Book Page
Return To: No. Pages: 14
STEVEN ZAKHARYAYEV
10 W37th Street, RM 602 Instrument: EXHIBIT(S)
New York, NY 10018
Control #: Unrecorded #9741020
Index #: Unassigned-1598648
Date:
ATIPANA CREDIT OPPORTUNITY FUND I, LP Time:
RK Food Mart LLC
Chowdavarapu, Venkata Ramana
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218
DocuSÏgn Envelope ID 71E69852-BCA8-4732-80F9-09CO8B 9572
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
Future Receivables Purchase Agreement
Legal name ("The Merchant"):
RK Food Mart LLC
DBA
RK Food Mart
Physical Address:
2618 Peach Orchard Rd
City State: Zip:
Augusta GA 30906
Mailing Address:
2618 Peach Orchard Rd
City State: Zip:
Augusta GA 30906
EIN: Email Address:
88 chowdavarapuramana@amail.com
This Agreement for the Purchase and Sale of Future Receivables Agreement ("Agreement") effective 8/31/2023, is made by and between
Atipana Credit Opportunity Fund I, LP (the "Funder"), the business identified above ("Merchant"), and each Guarantor identified below
(each a "Guarantor"). Funder hereby purchases from the above Merchant a percentage, as specified below (the "Specified
Percentage"), of all future receivables, accounts, contract rights and other amounts arising from, or relating to, payment of gross
amounts of monies by customers of the Merchant or other third-party payors (the "Future Receivables"), until the Funder
has received the amount specified below (the "Purchased Amount") for the purchase price ("Purchase Price") set forth below.
Changes to the Daily Amount The Daily Amount referenced below is intended to represent the Specified Percentage of Merchant's
Future Receivables. Merchant and Funder may request a reconciliation of the Daily Amount to more closely reflect Merchant's actual
Future Receivables times the Specified Percentage. Merchant may request a reconciliation by emailing Merchant's most recent bank
statements to hello@lfundr.com. Funder may request a reconciliation by e-mailing Merchant. In addition to the required bank
statements, Merchant agrees to provide Funder with any other information requested by Funder to assist in the reconciliation. Upon
receipt and reasonable verification of the Merchant's bank statements and any additional requested information, Funder shall adjust
the Daily Amount on a going-forward basis to more closely reflect Merchant's actual Future Receivables times the Specified
Percentage within five (5) business days of receiving the written request for a reconciliation and the requested information.
Both parties agree that the obligation of Funder under this Agreement for the Purchase and Sale of Future Receivables (the
"Agreement"), will not be effective unless and until Funder has completed its review of the Merchant and has accepted this
Agreement by delivering the Purchase Price, minus any closing costs disclosed below.
Purchase Price: $22,000.00
Closing Costs: $1,150.00
Amount Paid to Merchant after deducting closing costs: $20,850.00
Specified Percentage: 6.00%
Receipts purchased Amount: $32,120.00
DS
Daily Amount: $237.93
Initials:
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FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218
:uSign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024
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1. Delivery of Purchased Amount: Merchant must deposit all 7. Financial information: Merchant and any person executing
Future Receivables into the single business banking account a personal guaranty in connection with this Agreement,
specified in the Authorization Agreement for Automated authorizes Funder and its agents to investigate his, her or its
Clearing House Transactions (the "Account"). The Purchase financial responsibility and history, including, without
Price paid by Funder may not be used for any personal, family limitation, obtaining credit reports, and will provide to Funder
or household purposes. Merchant must instruct its credit card any authorizations, bank or financial statements, tax returns, or
processor (the "Processor"), which must be approved by other items Funder deems necessary in its sole discretion prior
Funder, to deposit all payment card receivables of Merchant to or at any time after execution of this Agreement A
into the Account. Merchant agrees not to change the Account photocopy of this authorization will be deemed acceptable as
or add an additional account without the express written an authorization for release of financial and credit information.
consent of Funder. Merchant authorizes Funder to debit the Funder is authorized to update such information and financial
Daily Amount from the Account each business day by either and credit profiles from time to time as it deems appropriate.
ACH or electronic check. Merchant will provide Funder with all Merchant and any personal guarantor waive, to the maximum
required access codes and agrees not to change them extent permitted by law, any claim for damages or statutory
without prior written consent from Funder. Merchant will penalties against Funder or any of its affiliates relating to any
provide an appropriate ACH authorization to Funder. investigation undertaken by or on behalf of Funder as
Merchant will be responsible for any fees incurred by Funder permitted by this Agreement or disclosure of information as
resulting from a rejected electronic check or ACH debit permitted by this Agreement.
attempt, as set forth in Appendix A. Funder is not responsible
for any overdrafts or rejected transactions that may result from 8. Transactional History: Merchant authorizes all its banks
Funder's debiting any amount authorized under the terms of and brokers and payment card processors to provide Funder
the Agreement. Merchant understands that the foregoing with Merchant's banking, brokerage and/or processing history
ACH authorization is a fundamental condition to induce to determine qualification or continuation in this program, or
Funder to accept the Agreement. Consequently, such for collections upon an Event of Default.
authorization shall be deemed irrevocable.
9. Application of Amounts Received by Funder. Funder
2. Daily Amount: The Daily Amount is intended to represent reserves the right to apply amounts received by it under this
the estimated Specified Percentage of Future Receivables Agreement to any fees or other charges due to Funder from
purchased by Funder. The Daily Amount will be debited on a Merchant prior to applying such amounts to reduce the
Daily basis, Monday through Friday, with the exclusion of amount of any outstanding Purchased Amount.
weekends and shall be subject to reconciliation as set forth
above. 10. Representations, Warranties and Covenants of
Merchant· As of the date of this Agreement
and, unless expressly
3. Specified Percentage Upon Default: Upon the occurrence stated otherwise, continuing until Funder has received 1) the
of an Event of Default as defined in Section 13, the Specified Purchased Amount and 2) all fees and charges due under this
Percentage shall equal 100%. Agreement, Merchant represents, warrants and covenants to
Funder as follows·
4. Sale of Future Receivables (THIS IS NOT A LOAN):
Merchant is selling a portion of a future revenue stream to 10.1 Good Faith, Best Efforts and Due Diligence. Merchant
Funder at a discount, not borrowing money from Funder. will conduct its business in good faith.
There is no interest rate or payment schedule and no time
during which the Purchased Amount must be remitted to 10.2 Stacking Prohibited. During the course of this
Funder. Provided that the Merchant is not in default under this Agreement, Merchant shall not enter into any merchant cash
Agreement, Funder shall look solely to the Specified advance or any loan agreement that relates to or involves its
Percentage of the Future Receivables to recover the Future Receivables with any party other than Funder for the
Purchased Amount. Accordingly, this Agreement shall have duration of this Agreement. Merchant further represents and
an indefinite term that shall last until all of the Merchant's warrants that: (a) there are currently no outstanding, pre-
obligations to Funder are fully satisfied in accordance with the existing merchant cash advance or loan agreements that
terms and conditions hereof, including, without limitation, any relate to or involve the Future Receivables, or (b) Merchant has
outstanding fees or costs. However, upon the occurrence of an previously disclosed the existence of any such pre- existing
Event of Default under this Agreement, Funder shall have all agreements to Funder in writing. Funder may share
of the rights and remedies to recover the Purchased Amount information regarding this Agreement with any third party to
as set forth herein, including, without limitation, the right to determine whether Merchant is in compliance with this
enforce any personal guaranty provided in connection provision.
herewith.
10.3 Financial Information. During the course of this
5. Fees and Charges: A list of all fees and charges imposed by Agreement, Merchant shall provide Funder with any requested
Funder applicable under this Agreement is contained in financial or business information within five (5) business days.
03
Appendix A.
6. Authorization to Contact Current and Prior Banks: Initials:
Merchant hereby authorizes Funder to contact any current or
prior bank of the Merchant in order to obtain whatever
information it may require regarding Merchant's transactions
with any such bank. Such information may include but is not
limited to, information necessary to verify the amount of
Future Receivables previously processed on behalf of
Merchant and any fees that may have been charged by the
bank. In addition, Merchant authorizes Funder to contact any
current or prior bank of the Merchant for collections and to
confirm that Merchant is exclusively using the Account, or any
other account approved by Funder, for the deposit of all
Future Receivables.
www 1fundr _com | 43 W 23rd Street [ New York NY 100 10 I 1-888-364-2189
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uSign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572
NYSCEF DOC. NO. 2 Fundr
RECEIVED NYSCEF: 03/26/2024
10.4 Governmental Approvals. Merchant complies and shall 10.13 Good Title. Merchant has good, complete and
comply with all laws and has valid permits, authorizations and marketable title to the Future Receivables, free and clear of any
licenses to own, operate and lease its properties and to and all liabilities, liens, claims, changes, restrictions, conditions,
conduct the business in which it is presently engaged and/or options, rights, mortgages, security interests, equities, pledges
will engage in hereafter. and encumbrances of any kind or nature whatsoever or any
other rights or interests that may be inconsistent with the
10.5 Authority to Enter into This Agreement. Merchant and transactions contemplated with, or adverse to the interests of
the person(s) signing this Agreement on behalf of Merchant, Funder.
have full power and authority to incur and perform the
obligations under this Agreement, all of which have been duly 11. Rights of Funden
authorized.
11.1. Acknowledgment of Security interest and Security
10.6 Change of Name or Location or Sale or Closing of Agreement. The Future Receivables sold by Merchant to
"accounts"
Business. Merchant will not conduct Merchant's businesses Funder pursuant to this Agreement are or
intangibles"
under any name other than as disclosed to Funder, nor "payment as those terms are defined in the
change any of its places of business, without prior written Uniform Commercial Code as in effect in the state in which the
consent of Funder. Merchant will not voluntarily sell, dispose, Merchant is located (the "UCC") and such sale shall constitute
transfer or otherwise convey all or substantially all its business and shall be construed and treated for allpurposes as a trueand
or assets without (i) the express prior written consent of complete sale, conveying good title to the Future Receivables
Funder, and (ii) the written agreement of any purchaser or free and clear of any liens and encumbrances, from Merchant
transferee assuming all of Merchant's obligations under this to Funder. Merchant acknowledges and agrees that· (i) the sale
Agreement pursuant to documentation satisfactory to of the Future Receivables creates a security interest as defined
Funder. Except as disclosed to Funder in writing, as of the date in the UCC, (ii) this Agreement constitutes a "security
agreement"
Merchant executes this Agreement, Merchant has no current under the UCC, and (iii) Funder has all the rights of
plans to close its business either temporarily, whether for a secured party under the UCC with respect to such Future
renovations, repairs or any other purpose, or permanently. Receivables. Merchant further acknowledges and agrees that,
Merchant agrees that until Funder has received all of the with or without an Event of Default, Funder may notify account
Purchased Amount, Merchant will not voluntarily close its debtors, or other persons obligated on the Future Receivables,
business on a temporary basis for renovations, repairs, or any of Merchant's sale of the Future Receivables and may instruct
other purposes. This provision, however, does not prohibit them to make payment or otherwise render performance to or
Merchant from closing its business temporarily if such closing for the benefit of Funder.
is required to conduct renovations or repairs that are required
by local ordinance or other legal order, such as from a health 11.2. Financing Statements. Merchant authorizes Funder to
or fire inspector, or if otherwise forced to do so by file one or more UCC-1 forms consistent with the UCC to give
circumstances outside of the control of Merchant. Prior to any notice that the Purchased Amount of Future Receivables is the
days'
such closure, Merchant will provide Funder ten business sole property of Funder. The UCC filing may state that such sale
notice to the extent practicable. is intended to be a sale and not an assignment for security and
may state that the Merchant is prohibited from obtaining any
10.7 No Pending or Contemplated Bankruptcy. As of the financing that impairs the value of the Future Receivables or
date Merchant executes this Agreement, Merchant does not Funder's right to collect same. Merchant authorizes Funder to
contemplate and has not filed any petition for bankruptcy debit the Account for all costs incurred by Funder associated
protection under Title 11of the United States Code and there with the filing, amendment or termination of any UCC filings.
has been no involuntary petition brought or pending against
Merchant. Merchant represents that as of the date Merchant 11.3. Right of Access. To ensure that Merchant is complying
executes this Agreement it has not consulted with a with the terms of this Agreement, Funder shall have the right
bankruptcy attorney within six months prior to the date of this to (i) enter, without notice, the premises of Merchant's business
Agreement. Merchant further warrants that as of the date during regular business hours for the purpose of inspecting
Merchant executes this Agreement, it does not anticipate and checking Merchant's transaction processing terminals to
filing a bankruptcy petition and it does not anticipate that an ensure the terminals are properly programmed to submit and
involuntary petition will be filed against it. or batch Merchant's daily Receivables to the Processor and to
ensure that Merchant has not violated any other provision of
10.8 Merchant to Maintain Insurance. Merchant will possess this Agreement, and (ii) Merchant shall provide access to its
and maintain insurance in such amounts and against such employees and records and all other items as requested by
risks as are necessary to protect its business and will provide Funder, and (iii) have Merchant provide information about its
proof of such insurance to Funder upon demand. business operations, banking relationships, vendors, landlord
and other information to allow Funder to interview any
10.9 Merchant to Pay Taxes Promptly. Merchant will relevant parties.
promptly pay all necessary taxes, including but not limited to
employment and sales and use taxes.
Initials:
10.10 No Violation of Prior Agreements. Merchant's
execution and performance of this Agreement will not conflict
with any other agreement, obligation, promise, court order,
administrative order or decree, law or regulation to which
Merchantissubject, including any agreement the prohibitsthe
sale or pledge of Merchant's future Receivables.
10.11 Merchant will not permit any event to occur that could
cause a diversion of any of Merchant's Future Receivables
from the Account to any other account or any other entity.
10.12 Merchant's Knowledge and Representation.
Merchant acknowledges that it is a sophisticated business
entity familiar with the kind of transaction covered by the
Agreement, and that it was represented by or had full
opportunity to consult with counsel prior to entering into this
Agreement.
23d Street New York NY 10010 1-888 364-2189
www.1fundr.com | 43 W [ |
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:usign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572
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RECEIVED NYSCEF: 03/26/2024
11.4. Phone Recordings and Contact. Merchant agrees that exercised at any time by Funder after the occurrence of an
any call between Funder and Merchant, and their agents and Event of Default, are cumulative and not exclusive, and shall be
employees may be recorded or monitored. Further, Merchant in addition to any other rights, powers or remedies provided by
agrees that (i) it has an established business relationship with law or equity.
Funder, its employees and agents, and that Merchant may be
contacted from time-to-time regarding this or other business 13. Modifications; Agreements. No modification,
transactions; (ii) that such communications and contacts are amendment, waiver or consent of any provision of this
not unsolicited or inconvenient; and (iii) that any such contact Agreement shall be effective unless the same shall be in
may be made at any phone number, emails address, or writing and signed by Funder.
facsimile number given to Funder by the Merchant, its agents
or employees, including cellular telephones, email, text 14. Assignment. Funder may assign, transfer or sell its rights to
messages or other method. receive the Purchased Amount or delegate its duties
hereunder, either in whole or in part, with or without prior
12. Events of Default. The occurrence of any of the following written notice to Merchant.
Default"
events shall constitute an "Event of hereunder
15. Personal Guaranty of Performance. Guarantor agrees to
(a) Merchant shall breach any material term or covenant in irrevocably, absolutely and unconditionally guarantee to
this Agreement; Funder prompt and complete performance of the following
obligations of Seller (the "Guaranteed Obligations"):
(b) Any representation or warranty by Merchant in this
Agreement shall prove to have been incorrect, false or i.) Seller's obligation to provide bank statements and other
misleading in any material respect when made; financial information within five business days after request
from Buyer;
(c) Merchant shall use multiple depository accounts without
the prior written consent of Funder; ii.) Sellers obligation to not change its payment card
processor, change its bank account, or add bank accounts;
(d) Merchant shall change its depositing Account without the
prior written consent of Funder; iii.) Sellers obligation to not conduct Seller's businesses under
any name other than as disclosed to Buyer;
(e) Merchant fails to provide any requested financial or
business information within five (5) business days of the iv.) Sellers obligation to not change any of its places of
request. business without prior written consent by Buyer;
12.1. Remedies. If any Event of Default occurs, Funder may v.) Selle s obligation to not voluntarily sell, dispose, transfer or
proceed to protect and enforce its rights to the fullest extent otherwise convey its business or substantially all business
permitted by applicable law, including, but not limited to, the assets without (a) the express prior written consent of Buyer,
following: and (b) the written agreement of any purchaser or transferee
assuming all of Seller's obligations under this Agreement
i.) As set forth in paragraph 3 above, the Specified Percentage pursuant to documentation satisfactory to Buyer;
shall equal 100%. The full uncollected Purchased Amount plus
all fees and charges (including legal, and collection fees) due vi.) Sellers obligation to not enter into any merchant cash
under this Agreement will become immediately due and advance or any loan agreement that relates to or encumbers
payable by Merchant to Funder in full. its Future Receipts with any party other than Buyer for the
duration of this Agreement without Buyers prior written
ii.) Funder may enforce the provisions of the Personal consent; and
Guaranty of Performance against each Guarantor.
vii.) Sellers obligation to provide truthful, accurate, and
complete information as required by this Agreement.
iii.) Funder may proceed with a lawsuit, under which Funder
shall seek Judgment against Merchant, and Merchant shall be
a a o o any e lo ng e s an G a an w o
m ed o re nable a o neys ees, I , and be released from its obligations under the Agreement and this
court costs.
Personal Guaranty of Performance if it is not notified of (1)
Se e s a ure to m y pe o angny a n
iv) nder may exercise and enforce its rights as a secured
dnanc a
condition or business; (iii) Buyers acceptance of the
Agreement; and (iv) any renewal, extension or other
v.) Funder may debit Merchant's depository accounts
modification of the Agreement or Seller 's other obligations
wherever situated by means of ACH debit or facsimile to Buyet
signature on a computer- generated check drawn on
Merchant's bank account or otherwise for all sums due to
Funder. Merchant shall pay to Funder all reasonable costs
associated with any Event of Default and the enforcement of
Funders remedies, including but not limited to court costs, as
attorneys'
collection costs and fees.
12.2. Subject to arbitration in section 30, all rights, powers and initials:
remedies of Funder in connection with this Agreement may be
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In addition, Buyer may take any of the following actions 20. Survival of Representation, etc. All representations,
without releasing Guarantor from any of its obligations under warranties and covenants herein shall survive the execution
the Agreement and this Performance Guaranty (i) renew, and delivery of this Agreement and shall continue in full force
extend or otherwise modify the Agreement or Seller's other until all obligations under this Agreement shall have been
obligations to Buyer; and (ii) release Seller from its obligations satisfied in full.
to Buyer. Guarantor shall not seek reimbursement from Seller
or any other guarantor for any amounts paid by it under the 21. Interpretation. All Parties hereto have had the
Agreement or this Performance Guaranty. Guarantor opportunity to review this Agreement with an attorney of their
permanently waives and shall not seek to exercise any of the own choosing and have either relied only on their own
following rights that it may have against Seller, or any other attorney's guidance and advice or have been provided
guarantor, for any amounts paid by it, or acts performed by it, sufficient opportunity to have an attorney of their choosing
under the Agreement or this Performance Guaranty·
(i) review the Agreement. No construction determinations shall
subrogation; (ii) reimbursement; (iii) performance; (iv) be made against either Party hereto as drafter.
indemnification; or (v) contribution. In the event that Buyer
must return any amount paid by Seller or any other guarantor 22. Entire Agreement and Severability. This Agreement
of the Guaranteed Obligations because that person has embodies the entire agreement between Merchant and
become subject to a proceeding under the United States Funder and supersedes all prior agreements and
Bankruptcy Code or any similar law, Guarantor's obligations understandings relating to the subject matter hereof. In case
under the Agreement and this Performance Guaranty shall any of the provisions in this Agreement is found to be invalid,
include that amount. illegal or unenforceable in any respect, the validity, legality and
enforceability of any other provision contained herein shall not
17. Guarantor Acknowledgement. Guarantor in any way be affected or impaired.
acknowledges that Guarantor understands the seriousness of
the provisions of the Agreement, including the Jury Waiver, 23. Facsimile Acceptance. Facsimile signatures hereon, or
Class Action Waiver and Arbitration sections, and has had a full other electronic means reflecting the party's signature hereto,
opportunity to consult with counsel their choice; and have shall be deemed acceptable for all purposes.
consulted with counsel or have decided not to avail himself /
herself / themselves of that opportunity. 24. Confidentiality: The terms and conditions of this
Agreement are proprietary and confidential unless disclosure
18. Notices thereof is required by law. Merchant shall not disclose this
information to anyone other than its attorney, accountant or
18.1. Notices from Funder to Merchant. Funder may send similar service provider and then only to the extent such
any notices, disclosures, terms and conditions, other person uses the information solely for purpose of advising
documents, and any future changes to Merchant by regular Merchant and agrees in writing to be bound by the terms of
mail or by e-mail, at Funder's option and Merchant consents this Agreement Section.
to such electronic delivery. Notices sent by e-mail are effective
. when sent. Notices sent by regular mail become effective 25. Monitoring, Recording and Solicitations.
upon mailing to Merchant's address set forth in this
Agreement. 25.1. Authorization to Contact Merchant by Phone.
Merchant agrees that Funder, its affiliates, agents and
18.2. Notices from Merchant and Grantor to Funder. independent contractors, may contact merchant by telephone
Merchant may send any notices to Funder by e-mail only upon or text message at any telephone number associated with
the prior written consent of Funder, which consent may be Merchant's account(s), including wireless telephone numbers,
withheld or revoked at any time in Funder's sole discretion, in order to service Merchant's account(s) or collect any
unless immediate notice is required, in which case email shall amounts owed to Funder.
be permitted. Otherwise, any notices or other
communications from Merchant to Funder must be delivered 25.2. Authorization to Contact Merchant by Other Means.
by certified mail, return receipt requested, to Funder's address Merchant also agrees that Funder, its affiliates, agents and
set forth in this Agreement. Notices sent to Funder shall independent contractors, may use any other medium not
. become effective only upon receipt by Funder. prohibited by law including, but not limited to, mail, e-mail and
facsimile, to contact Merchant. Merchant expressly consents
18.3. Merchant is required to give Funder written notice within to conduct business by electronic means.
24 hours of any bankruptcy filing under the United States
days'
Code. Merchant is required to give Funder seven written
notice prior to the closing of any sale of all or substantially all
of the Merchant's assets or stock.
19. Binding Effect; Goveming Law, Venue and Jurisdiction. os
This Agreement shall be binding upon and inure to the benefit
of Merchant, Funder and their respective successors and
assigns, except that Merchant shall not have the right to Initials:
assign its rights hereunder or any interest herein without the
prior written consent of Funder which consent may be
withheld in Funder's sole discretion. This Agreement shall be
governed by and construed in accordance with the laws of the
state of New York, without regard to any applicable principals
of conflicts of law. Any suit, action or proceeding arising
hereunder, or the interpretation, performance or breach of this
Agreement, shall be instituted in any court sitting in New York
(the "Acceptable Forums"). Merchant agrees that the
Acceptable Forums are convenient to it and submits to the
jurisdiction of the Acceptable Forums and waives any and all
objections to jurisdiction or venue.
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26. JURY WAlVER. THE PARTIES WAlVE THE RIGHT TO A 30, ARBITRATION. IF FUNDER, MERCHANT OR ANY
TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR GUARANTOR REQUESTS, THE OTHER PARTIES AGREE TO
PROCEEDING ON ANY MATTER ARISING IN CONNECTION ARBITRATE ALL DISPUTES AND CLAIMS ARISING OUT OF OR
WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF ELATING TO THIS AGREEMENT. IF FUNDER, MERCHANT OR
WHICH THIS AGREEMENT IS A PART OR ITS ENFORCEMENT, ANY GUARANTOR SEEKS TO HAVE A DISPUTE SETTLED BY
EXCEPT WHERE SUCH WAlVER IS PROHIBITED BY LAW OR ARBITRATION, THAT PARTY MUST FIRST SEND TO ALL
DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC
POUCY. THE PARTIES ACKNOWLEDGE THAT EACH MAKES PARTIES, BY CERTIFIED MAIL A WRITTEN NOTICE OF INTENT
THIS WAlVER KNOWINGLY, WILLINGLY AND VOLUNTARILY TO ARBITRATE. IF FUNDER, MERCHANT OR ANY GUARANTOR
AND WITHOUT DURESS, AND ONLY AFTER A FULL AND FAIR DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM
OPPORTUNITY TO REVIEW OF THE RAMlFICATIONS OF THIS WITHIN 30 DAYS AFTER THE NOTICE IS RECElVED, FUNDER,
WAlVER WITH THEIR ATTORNEYS. MERCHANT OR ANY GUARANTOR MAY COMMENCE AN
27 CLASS ACTION WAlVER. THE PARTIES WAlVE ANY
RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY
Bl O O m W
AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR
'
REPRESENTATIVE ACTION EXCEPT WHERE SUCH WAlVER IS
IN THE EVENT THAT BOTH MERCHANT AND THE GUARANTOR
PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO MUST PAY FlUNG FEES, FUNDER WILL ONLY RElMBURSE
BE AGAINST PUBUC POLICY. TO THE EXTENT EITHER PARTY
MERCHANT'S ARBITRATION FILING FEE AND, EXCEPT AS
IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED
PROVIDED IN THE NEXT SENTENCE FUNDER WILL PAY ALL
WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE
ADMINISTRATION AND ARBITRATOR FEES. IF THE
OTHER, THE PARTIES AGREE THAT: ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE
CLAIM RAISED BY MERCHANT OR THE GUARANTOR OR THE
(1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RELIEF SOUGHT BY MERCHANT OR THE GUARANTOR IS
ATTORNEYS'
RECOVER FEES OR COSTS ASSOCIATED WITH IMPROPER OR NOT WARRA
Preview
FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # Book Page Return To: No. Pages: 14 STEVEN ZAKHARYAYEV 10 W37th Street, RM 602 Instrument: EXHIBIT(S) New York, NY 10018 Control #: Unrecorded #9741020 Index #: Unassigned-1598648 Date: ATIPANA CREDIT OPPORTUNITY FUND I, LP Time: RK Food Mart LLC Chowdavarapu, Venkata Ramana Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 DocuSÏgn Envelope ID 71E69852-BCA8-4732-80F9-09CO8B 9572 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 Future Receivables Purchase Agreement Legal name ("The Merchant"): RK Food Mart LLC DBA RK Food Mart Physical Address: 2618 Peach Orchard Rd City State: Zip: Augusta GA 30906 Mailing Address: 2618 Peach Orchard Rd City State: Zip: Augusta GA 30906 EIN: Email Address: 88 chowdavarapuramana@amail.com This Agreement for the Purchase and Sale of Future Receivables Agreement ("Agreement") effective 8/31/2023, is made by and between Atipana Credit Opportunity Fund I, LP (the "Funder"), the business identified above ("Merchant"), and each Guarantor identified below (each a "Guarantor"). Funder hereby purchases from the above Merchant a percentage, as specified below (the "Specified Percentage"), of all future receivables, accounts, contract rights and other amounts arising from, or relating to, payment of gross amounts of monies by customers of the Merchant or other third-party payors (the "Future Receivables"), until the Funder has received the amount specified below (the "Purchased Amount") for the purchase price ("Purchase Price") set forth below. Changes to the Daily Amount The Daily Amount referenced below is intended to represent the Specified Percentage of Merchant's Future Receivables. Merchant and Funder may request a reconciliation of the Daily Amount to more closely reflect Merchant's actual Future Receivables times the Specified Percentage. Merchant may request a reconciliation by emailing Merchant's most recent bank statements to hello@lfundr.com. Funder may request a reconciliation by e-mailing Merchant. In addition to the required bank statements, Merchant agrees to provide Funder with any other information requested by Funder to assist in the reconciliation. Upon receipt and reasonable verification of the Merchant's bank statements and any additional requested information, Funder shall adjust the Daily Amount on a going-forward basis to more closely reflect Merchant's actual Future Receivables times the Specified Percentage within five (5) business days of receiving the written request for a reconciliation and the requested information. Both parties agree that the obligation of Funder under this Agreement for the Purchase and Sale of Future Receivables (the "Agreement"), will not be effective unless and until Funder has completed its review of the Merchant and has accepted this Agreement by delivering the Purchase Price, minus any closing costs disclosed below. Purchase Price: $22,000.00 Closing Costs: $1,150.00 Amount Paid to Merchant after deducting closing costs: $20,850.00 Specified Percentage: 6.00% Receipts purchased Amount: $32,120.00 DS Daily Amount: $237.93 Initials: www 1fundr.com | 43 W 23'd Street | New York NY 10010 | 1-888-364-2189 FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 :uSign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/26/2024 Fundr 1. Delivery of Purchased Amount: Merchant must deposit all 7. Financial information: Merchant and any person executing Future Receivables into the single business banking account a personal guaranty in connection with this Agreement, specified in the Authorization Agreement for Automated authorizes Funder and its agents to investigate his, her or its Clearing House Transactions (the "Account"). The Purchase financial responsibility and history, including, without Price paid by Funder may not be used for any personal, family limitation, obtaining credit reports, and will provide to Funder or household purposes. Merchant must instruct its credit card any authorizations, bank or financial statements, tax returns, or processor (the "Processor"), which must be approved by other items Funder deems necessary in its sole discretion prior Funder, to deposit all payment card receivables of Merchant to or at any time after execution of this Agreement A into the Account. Merchant agrees not to change the Account photocopy of this authorization will be deemed acceptable as or add an additional account without the express written an authorization for release of financial and credit information. consent of Funder. Merchant authorizes Funder to debit the Funder is authorized to update such information and financial Daily Amount from the Account each business day by either and credit profiles from time to time as it deems appropriate. ACH or electronic check. Merchant will provide Funder with all Merchant and any personal guarantor waive, to the maximum required access codes and agrees not to change them extent permitted by law, any claim for damages or statutory without prior written consent from Funder. Merchant will penalties against Funder or any of its affiliates relating to any provide an appropriate ACH authorization to Funder. investigation undertaken by or on behalf of Funder as Merchant will be responsible for any fees incurred by Funder permitted by this Agreement or disclosure of information as resulting from a rejected electronic check or ACH debit permitted by this Agreement. attempt, as set forth in Appendix A. Funder is not responsible for any overdrafts or rejected transactions that may result from 8. Transactional History: Merchant authorizes all its banks Funder's debiting any amount authorized under the terms of and brokers and payment card processors to provide Funder the Agreement. Merchant understands that the foregoing with Merchant's banking, brokerage and/or processing history ACH authorization is a fundamental condition to induce to determine qualification or continuation in this program, or Funder to accept the Agreement. Consequently, such for collections upon an Event of Default. authorization shall be deemed irrevocable. 9. Application of Amounts Received by Funder. Funder 2. Daily Amount: The Daily Amount is intended to represent reserves the right to apply amounts received by it under this the estimated Specified Percentage of Future Receivables Agreement to any fees or other charges due to Funder from purchased by Funder. The Daily Amount will be debited on a Merchant prior to applying such amounts to reduce the Daily basis, Monday through Friday, with the exclusion of amount of any outstanding Purchased Amount. weekends and shall be subject to reconciliation as set forth above. 10. Representations, Warranties and Covenants of Merchant· As of the date of this Agreement and, unless expressly 3. Specified Percentage Upon Default: Upon the occurrence stated otherwise, continuing until Funder has received 1) the of an Event of Default as defined in Section 13, the Specified Purchased Amount and 2) all fees and charges due under this Percentage shall equal 100%. Agreement, Merchant represents, warrants and covenants to Funder as follows· 4. Sale of Future Receivables (THIS IS NOT A LOAN): Merchant is selling a portion of a future revenue stream to 10.1 Good Faith, Best Efforts and Due Diligence. Merchant Funder at a discount, not borrowing money from Funder. will conduct its business in good faith. There is no interest rate or payment schedule and no time during which the Purchased Amount must be remitted to 10.2 Stacking Prohibited. During the course of this Funder. Provided that the Merchant is not in default under this Agreement, Merchant shall not enter into any merchant cash Agreement, Funder shall look solely to the Specified advance or any loan agreement that relates to or involves its Percentage of the Future Receivables to recover the Future Receivables with any party other than Funder for the Purchased Amount. Accordingly, this Agreement shall have duration of this Agreement. Merchant further represents and an indefinite term that shall last until all of the Merchant's warrants that: (a) there are currently no outstanding, pre- obligations to Funder are fully satisfied in accordance with the existing merchant cash advance or loan agreements that terms and conditions hereof, including, without limitation, any relate to or involve the Future Receivables, or (b) Merchant has outstanding fees or costs. However, upon the occurrence of an previously disclosed the existence of any such pre- existing Event of Default under this Agreement, Funder shall have all agreements to Funder in writing. Funder may share of the rights and remedies to recover the Purchased Amount information regarding this Agreement with any third party to as set forth herein, including, without limitation, the right to determine whether Merchant is in compliance with this enforce any personal guaranty provided in connection provision. herewith. 10.3 Financial Information. During the course of this 5. Fees and Charges: A list of all fees and charges imposed by Agreement, Merchant shall provide Funder with any requested Funder applicable under this Agreement is contained in financial or business information within five (5) business days. 03 Appendix A. 6. Authorization to Contact Current and Prior Banks: Initials: Merchant hereby authorizes Funder to contact any current or prior bank of the Merchant in order to obtain whatever information it may require regarding Merchant's transactions with any such bank. Such information may include but is not limited to, information necessary to verify the amount of Future Receivables previously processed on behalf of Merchant and any fees that may have been charged by the bank. In addition, Merchant authorizes Funder to contact any current or prior bank of the Merchant for collections and to confirm that Merchant is exclusively using the Account, or any other account approved by Funder, for the deposit of all Future Receivables. www 1fundr _com | 43 W 23rd Street [ New York NY 100 10 I 1-888-364-2189 FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 uSign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572 NYSCEF DOC. NO. 2 Fundr RECEIVED NYSCEF: 03/26/2024 10.4 Governmental Approvals. Merchant complies and shall 10.13 Good Title. Merchant has good, complete and comply with all laws and has valid permits, authorizations and marketable title to the Future Receivables, free and clear of any licenses to own, operate and lease its properties and to and all liabilities, liens, claims, changes, restrictions, conditions, conduct the business in which it is presently engaged and/or options, rights, mortgages, security interests, equities, pledges will engage in hereafter. and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the 10.5 Authority to Enter into This Agreement. Merchant and transactions contemplated with, or adverse to the interests of the person(s) signing this Agreement on behalf of Merchant, Funder. have full power and authority to incur and perform the obligations under this Agreement, all of which have been duly 11. Rights of Funden authorized. 11.1. Acknowledgment of Security interest and Security 10.6 Change of Name or Location or Sale or Closing of Agreement. The Future Receivables sold by Merchant to "accounts" Business. Merchant will not conduct Merchant's businesses Funder pursuant to this Agreement are or intangibles" under any name other than as disclosed to Funder, nor "payment as those terms are defined in the change any of its places of business, without prior written Uniform Commercial Code as in effect in the state in which the consent of Funder. Merchant will not voluntarily sell, dispose, Merchant is located (the "UCC") and such sale shall constitute transfer or otherwise convey all or substantially all its business and shall be construed and treated for allpurposes as a trueand or assets without (i) the express prior written consent of complete sale, conveying good title to the Future Receivables Funder, and (ii) the written agreement of any purchaser or free and clear of any liens and encumbrances, from Merchant transferee assuming all of Merchant's obligations under this to Funder. Merchant acknowledges and agrees that· (i) the sale Agreement pursuant to documentation satisfactory to of the Future Receivables creates a security interest as defined Funder. Except as disclosed to Funder in writing, as of the date in the UCC, (ii) this Agreement constitutes a "security agreement" Merchant executes this Agreement, Merchant has no current under the UCC, and (iii) Funder has all the rights of plans to close its business either temporarily, whether for a secured party under the UCC with respect to such Future renovations, repairs or any other purpose, or permanently. Receivables. Merchant further acknowledges and agrees that, Merchant agrees that until Funder has received all of the with or without an Event of Default, Funder may notify account Purchased Amount, Merchant will not voluntarily close its debtors, or other persons obligated on the Future Receivables, business on a temporary basis for renovations, repairs, or any of Merchant's sale of the Future Receivables and may instruct other purposes. This provision, however, does not prohibit them to make payment or otherwise render performance to or Merchant from closing its business temporarily if such closing for the benefit of Funder. is required to conduct renovations or repairs that are required by local ordinance or other legal order, such as from a health 11.2. Financing Statements. Merchant authorizes Funder to or fire inspector, or if otherwise forced to do so by file one or more UCC-1 forms consistent with the UCC to give circumstances outside of the control of Merchant. Prior to any notice that the Purchased Amount of Future Receivables is the days' such closure, Merchant will provide Funder ten business sole property of Funder. The UCC filing may state that such sale notice to the extent practicable. is intended to be a sale and not an assignment for security and may state that the Merchant is prohibited from obtaining any 10.7 No Pending or Contemplated Bankruptcy. As of the financing that impairs the value of the Future Receivables or date Merchant executes this Agreement, Merchant does not Funder's right to collect same. Merchant authorizes Funder to contemplate and has not filed any petition for bankruptcy debit the Account for all costs incurred by Funder associated protection under Title 11of the United States Code and there with the filing, amendment or termination of any UCC filings. has been no involuntary petition brought or pending against Merchant. Merchant represents that as of the date Merchant 11.3. Right of Access. To ensure that Merchant is complying executes this Agreement it has not consulted with a with the terms of this Agreement, Funder shall have the right bankruptcy attorney within six months prior to the date of this to (i) enter, without notice, the premises of Merchant's business Agreement. Merchant further warrants that as of the date during regular business hours for the purpose of inspecting Merchant executes this Agreement, it does not anticipate and checking Merchant's transaction processing terminals to filing a bankruptcy petition and it does not anticipate that an ensure the terminals are properly programmed to submit and involuntary petition will be filed against it. or batch Merchant's daily Receivables to the Processor and to ensure that Merchant has not violated any other provision of 10.8 Merchant to Maintain Insurance. Merchant will possess this Agreement, and (ii) Merchant shall provide access to its and maintain insurance in such amounts and against such employees and records and all other items as requested by risks as are necessary to protect its business and will provide Funder, and (iii) have Merchant provide information about its proof of such insurance to Funder upon demand. business operations, banking relationships, vendors, landlord and other information to allow Funder to interview any 10.9 Merchant to Pay Taxes Promptly. Merchant will relevant parties. promptly pay all necessary taxes, including but not limited to employment and sales and use taxes. Initials: 10.10 No Violation of Prior Agreements. Merchant's execution and performance of this Agreement will not conflict with any other agreement, obligation, promise, court order, administrative order or decree, law or regulation to which Merchantissubject, including any agreement the prohibitsthe sale or pledge of Merchant's future Receivables. 10.11 Merchant will not permit any event to occur that could cause a diversion of any of Merchant's Future Receivables from the Account to any other account or any other entity. 10.12 Merchant's Knowledge and Representation. Merchant acknowledges that it is a sophisticated business entity familiar with the kind of transaction covered by the Agreement, and that it was represented by or had full opportunity to consult with counsel prior to entering into this Agreement. 23d Street New York NY 10010 1-888 364-2189 www.1fundr.com | 43 W [ | FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 :usign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572 NYSCEF DOC. NO. 2 Fundr RECEIVED NYSCEF: 03/26/2024 11.4. Phone Recordings and Contact. Merchant agrees that exercised at any time by Funder after the occurrence of an any call between Funder and Merchant, and their agents and Event of Default, are cumulative and not exclusive, and shall be employees may be recorded or monitored. Further, Merchant in addition to any other rights, powers or remedies provided by agrees that (i) it has an established business relationship with law or equity. Funder, its employees and agents, and that Merchant may be contacted from time-to-time regarding this or other business 13. Modifications; Agreements. No modification, transactions; (ii) that such communications and contacts are amendment, waiver or consent of any provision of this not unsolicited or inconvenient; and (iii) that any such contact Agreement shall be effective unless the same shall be in may be made at any phone number, emails address, or writing and signed by Funder. facsimile number given to Funder by the Merchant, its agents or employees, including cellular telephones, email, text 14. Assignment. Funder may assign, transfer or sell its rights to messages or other method. receive the Purchased Amount or delegate its duties hereunder, either in whole or in part, with or without prior 12. Events of Default. The occurrence of any of the following written notice to Merchant. Default" events shall constitute an "Event of hereunder 15. Personal Guaranty of Performance. Guarantor agrees to (a) Merchant shall breach any material term or covenant in irrevocably, absolutely and unconditionally guarantee to this Agreement; Funder prompt and complete performance of the following obligations of Seller (the "Guaranteed Obligations"): (b) Any representation or warranty by Merchant in this Agreement shall prove to have been incorrect, false or i.) Seller's obligation to provide bank statements and other misleading in any material respect when made; financial information within five business days after request from Buyer; (c) Merchant shall use multiple depository accounts without the prior written consent of Funder; ii.) Sellers obligation to not change its payment card processor, change its bank account, or add bank accounts; (d) Merchant shall change its depositing Account without the prior written consent of Funder; iii.) Sellers obligation to not conduct Seller's businesses under any name other than as disclosed to Buyer; (e) Merchant fails to provide any requested financial or business information within five (5) business days of the iv.) Sellers obligation to not change any of its places of request. business without prior written consent by Buyer; 12.1. Remedies. If any Event of Default occurs, Funder may v.) Selle s obligation to not voluntarily sell, dispose, transfer or proceed to protect and enforce its rights to the fullest extent otherwise convey its business or substantially all business permitted by applicable law, including, but not limited to, the assets without (a) the express prior written consent of Buyer, following: and (b) the written agreement of any purchaser or transferee assuming all of Seller's obligations under this Agreement i.) As set forth in paragraph 3 above, the Specified Percentage pursuant to documentation satisfactory to Buyer; shall equal 100%. The full uncollected Purchased Amount plus all fees and charges (including legal, and collection fees) due vi.) Sellers obligation to not enter into any merchant cash under this Agreement will become immediately due and advance or any loan agreement that relates to or encumbers payable by Merchant to Funder in full. its Future Receipts with any party other than Buyer for the duration of this Agreement without Buyers prior written ii.) Funder may enforce the provisions of the Personal consent; and Guaranty of Performance against each Guarantor. vii.) Sellers obligation to provide truthful, accurate, and complete information as required by this Agreement. iii.) Funder may proceed with a lawsuit, under which Funder shall seek Judgment against Merchant, and Merchant shall be a a o o any e lo ng e s an G a an w o m ed o re nable a o neys ees, I , and be released from its obligations under the Agreement and this court costs. Personal Guaranty of Performance if it is not notified of (1) Se e s a ure to m y pe o angny a n iv) nder may exercise and enforce its rights as a secured dnanc a condition or business; (iii) Buyers acceptance of the Agreement; and (iv) any renewal, extension or other v.) Funder may debit Merchant's depository accounts modification of the Agreement or Seller 's other obligations wherever situated by means of ACH debit or facsimile to Buyet signature on a computer- generated check drawn on Merchant's bank account or otherwise for all sums due to Funder. Merchant shall pay to Funder all reasonable costs associated with any Event of Default and the enforcement of Funders remedies, including but not limited to court costs, as attorneys' collection costs and fees. 12.2. Subject to arbitration in section 30, all rights, powers and initials: remedies of Funder in connection with this Agreement may be www 1fundr com | 43 W 23d Street [ New York NY 100 10 I I-888-364-2189 FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 :usign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572 NYSCEF DOC. NO. 2 Q Fundr RECEIVED NYSCEF: 03/26/2024 In addition, Buyer may take any of the following actions 20. Survival of Representation, etc. All representations, without releasing Guarantor from any of its obligations under warranties and covenants herein shall survive the execution the Agreement and this Performance Guaranty (i) renew, and delivery of this Agreement and shall continue in full force extend or otherwise modify the Agreement or Seller's other until all obligations under this Agreement shall have been obligations to Buyer; and (ii) release Seller from its obligations satisfied in full. to Buyer. Guarantor shall not seek reimbursement from Seller or any other guarantor for any amounts paid by it under the 21. Interpretation. All Parties hereto have had the Agreement or this Performance Guaranty. Guarantor opportunity to review this Agreement with an attorney of their permanently waives and shall not seek to exercise any of the own choosing and have either relied only on their own following rights that it may have against Seller, or any other attorney's guidance and advice or have been provided guarantor, for any amounts paid by it, or acts performed by it, sufficient opportunity to have an attorney of their choosing under the Agreement or this Performance Guaranty· (i) review the Agreement. No construction determinations shall subrogation; (ii) reimbursement; (iii) performance; (iv) be made against either Party hereto as drafter. indemnification; or (v) contribution. In the event that Buyer must return any amount paid by Seller or any other guarantor 22. Entire Agreement and Severability. This Agreement of the Guaranteed Obligations because that person has embodies the entire agreement between Merchant and become subject to a proceeding under the United States Funder and supersedes all prior agreements and Bankruptcy Code or any similar law, Guarantor's obligations understandings relating to the subject matter hereof. In case under the Agreement and this Performance Guaranty shall any of the provisions in this Agreement is found to be invalid, include that amount. illegal or unenforceable in any respect, the validity, legality and enforceability of any other provision contained herein shall not 17. Guarantor Acknowledgement. Guarantor in any way be affected or impaired. acknowledges that Guarantor understands the seriousness of the provisions of the Agreement, including the Jury Waiver, 23. Facsimile Acceptance. Facsimile signatures hereon, or Class Action Waiver and Arbitration sections, and has had a full other electronic means reflecting the party's signature hereto, opportunity to consult with counsel their choice; and have shall be deemed acceptable for all purposes. consulted with counsel or have decided not to avail himself / herself / themselves of that opportunity. 24. Confidentiality: The terms and conditions of this Agreement are proprietary and confidential unless disclosure 18. Notices thereof is required by law. Merchant shall not disclose this information to anyone other than its attorney, accountant or 18.1. Notices from Funder to Merchant. Funder may send similar service provider and then only to the extent such any notices, disclosures, terms and conditions, other person uses the information solely for purpose of advising documents, and any future changes to Merchant by regular Merchant and agrees in writing to be bound by the terms of mail or by e-mail, at Funder's option and Merchant consents this Agreement Section. to such electronic delivery. Notices sent by e-mail are effective . when sent. Notices sent by regular mail become effective 25. Monitoring, Recording and Solicitations. upon mailing to Merchant's address set forth in this Agreement. 25.1. Authorization to Contact Merchant by Phone. Merchant agrees that Funder, its affiliates, agents and 18.2. Notices from Merchant and Grantor to Funder. independent contractors, may contact merchant by telephone Merchant may send any notices to Funder by e-mail only upon or text message at any telephone number associated with the prior written consent of Funder, which consent may be Merchant's account(s), including wireless telephone numbers, withheld or revoked at any time in Funder's sole discretion, in order to service Merchant's account(s) or collect any unless immediate notice is required, in which case email shall amounts owed to Funder. be permitted. Otherwise, any notices or other communications from Merchant to Funder must be delivered 25.2. Authorization to Contact Merchant by Other Means. by certified mail, return receipt requested, to Funder's address Merchant also agrees that Funder, its affiliates, agents and set forth in this Agreement. Notices sent to Funder shall independent contractors, may use any other medium not . become effective only upon receipt by Funder. prohibited by law including, but not limited to, mail, e-mail and facsimile, to contact Merchant. Merchant expressly consents 18.3. Merchant is required to give Funder written notice within to conduct business by electronic means. 24 hours of any bankruptcy filing under the United States days' Code. Merchant is required to give Funder seven written notice prior to the closing of any sale of all or substantially all of the Merchant's assets or stock. 19. Binding Effect; Goveming Law, Venue and Jurisdiction. os This Agreement shall be binding upon and inure to the benefit of Merchant, Funder and their respective successors and assigns, except that Merchant shall not have the right to Initials: assign its rights hereunder or any interest herein without the prior written consent of Funder which consent may be withheld in Funder's sole discretion. This Agreement shall be governed by and construed in accordance with the laws of the state of New York, without regard to any applicable principals of conflicts of law. Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach of this Agreement, shall be instituted in any court sitting in New York (the "Acceptable Forums"). Merchant agrees that the Acceptable Forums are convenient to it and submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue. www 1fundr com | 43 W 23"$ Street I New York NY 10010 [ 1-888-364-2189 FILED: MONROE COUNTY CLERK 03/26/2024 10:18 AM INDEX NO. E2024005218 DocuSign Envelope ID: 71E69852-BCA8-4732-80F9-09C08B159572 NYSCEF DOC. NO. 2 Q Fundr RECEIVED NYSCEF: 03/26/2024 26. JURY WAlVER. THE PARTIES WAlVE THE RIGHT TO A 30, ARBITRATION. IF FUNDER, MERCHANT OR ANY TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR GUARANTOR REQUESTS, THE OTHER PARTIES AGREE TO PROCEEDING ON ANY MATTER ARISING IN CONNECTION ARBITRATE ALL DISPUTES AND CLAIMS ARISING OUT OF OR WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF ELATING TO THIS AGREEMENT. IF FUNDER, MERCHANT OR WHICH THIS AGREEMENT IS A PART OR ITS ENFORCEMENT, ANY GUARANTOR SEEKS TO HAVE A DISPUTE SETTLED BY EXCEPT WHERE SUCH WAlVER IS PROHIBITED BY LAW OR ARBITRATION, THAT PARTY MUST FIRST SEND TO ALL DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POUCY. THE PARTIES ACKNOWLEDGE THAT EACH MAKES PARTIES, BY CERTIFIED MAIL A WRITTEN NOTICE OF INTENT THIS WAlVER KNOWINGLY, WILLINGLY AND VOLUNTARILY TO ARBITRATE. IF FUNDER, MERCHANT OR ANY GUARANTOR AND WITHOUT DURESS, AND ONLY AFTER A FULL AND FAIR DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM OPPORTUNITY TO REVIEW OF THE RAMlFICATIONS OF THIS WITHIN 30 DAYS AFTER THE NOTICE IS RECElVED, FUNDER, WAlVER WITH THEIR ATTORNEYS. MERCHANT OR ANY GUARANTOR MAY COMMENCE AN 27 CLASS ACTION WAlVER. THE PARTIES WAlVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY Bl O O m W AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR ' REPRESENTATIVE ACTION EXCEPT WHERE SUCH WAlVER IS IN THE EVENT THAT BOTH MERCHANT AND THE GUARANTOR PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO MUST PAY FlUNG FEES, FUNDER WILL ONLY RElMBURSE BE AGAINST PUBUC POLICY. TO THE EXTENT EITHER PARTY MERCHANT'S ARBITRATION FILING FEE AND, EXCEPT AS IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED PROVIDED IN THE NEXT SENTENCE FUNDER WILL PAY ALL WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE ADMINISTRATION AND ARBITRATOR FEES. IF THE OTHER, THE PARTIES AGREE THAT: ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY MERCHANT OR THE GUARANTOR OR THE (1) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RELIEF SOUGHT BY MERCHANT OR THE GUARANTOR IS ATTORNEYS' RECOVER FEES OR COSTS ASSOCIATED WITH IMPROPER OR NOT WARRA